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HomeMy WebLinkAboutJANUARY 30, 2019 SIGN EASEMENT SIGN EASEMENT THIS SIGN EASEMENT (the "Agreement") is made and entered into this 30th day of January,2019,by and between the City of Jeffersonville,by and through its Board of Public Works and Safety, an Indiana municipal corporation (the "Grantor"), who has a mailing address of 500 Indiana limited liability company("Hogan"),who has a mailing address of 9300 Shelbyville Road, Suite 1300, Louisville, Kentucky 40222. RECITALS A. Grantor is the owner of that certain real property located at the intersection of 9th and Spring Streets in the City of Jeffersonville, County of Clark, State of Indiana, that is more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Easement Parcel"). B. Hogan is or will be the owner of that certain real property located north of 9th Street and situated in the City of Jeffersonville, County of Clark, State of Indiana, that is more particularly described on Exhibit B attached hereto and incorporated herein by this reference (the "Lot 4"). C. Hogan desires to construct a monument sign on a portion of the Easement Parcel for purposes of identifying the business on Lot 4 and the Additional Gateway Parcels. D. Grantor now desires to convey to Hogan, its tenants, employees, invitees, vendors, successors and assigns a sign easement on the Easement Parcel on the terms and conditions hereinafter set forth. NOW, THEREFORE, for and in consideration of the premises, the covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Definitions. In addition to the terms defined in the recitals above and within the other Sections of this Agreement, for purposes hereof: 1.1 The term "Common Area" shall mean those portions of the Easement Parcel that are not a part of the Monument Sign or other structures related to such Monument Sign from time to time located on the Easement Parcel, and which are either unimproved, or are improved as (without limitation) landscaped areas, walkways, sidewalks,curbing,paving, and other similar site improvements. 1.2 The term "Additional Gateway Parcels" shall mean Lots 1, 2, 3, 5, 6, and 7 as depicted on the Jeffersonville Gateway Final Plat — Phase 1 prepared by Land Design and Development, Inc. dated October 25, 2018, and recorded October 30, 2018, in Plat Book 17, Page 61, as Instrument No. 201819450 in the Recording Office, and the Jeffersonville Gateway Final Plat — Phase 2 prepared by Land Design and Development, Inc. dated October 25, 2018, and recorded October 30, 2018, in Plat Book 17, Page 62, as Instrument No. 201819451 in the Recording Office. �oo12n3113 1.3 The term "Owner" or"Owners" shall mean, as the context may require or indicate, the fee simple owner of Lot 4 and/or the fee simple owner of the Easement Parcel and any and all successors or assigns of such persons as the owner or owners of fee simple title to all or any portion of the real property covered by this Agreement, whether by sale, assignment, inheritance, operation of law, trustee's sale, fnrerinsure nr otherwise hut not inrluriinp,the hnlcirr of any lien nr encinnhrance on such real property. 1.4 The term "Permittee" or "Permittees" shall mean, as the context may require or indicate, (i) the tenant(s) or occupant(s) of Lot 4 and/or the Easement Parcel, (ii) the respective employees, agents,contractors, customers, invitees and licensees of (A) the Owner of Lot 4 and/or the Easement Parcel, and/or (B) such tenant(s) or occupant(s) thereof, and (iii) if the Owner of Lot 4 grants, to the fee simple owner of one or more of the Additional Gateway Parcels, a license to use the Monument Sign, the fee simple owners, tenant(s) or occupant(s) of the Additional Gateway Parcels, and the respective employees, agents,contractors,customers, invitees and licensees of the same. 1.5 The term "Recording Office" shall mean the Office of the Recorder of Clark County, Indiana. 1.6 The term "Tract" or "Tracts" shall mean each separately identified parcel of real property now constituting a part of the real property subjected to this Agreement as described on Exhibit A and Exhibit B; that is, the Easement Parcel and Lot 4, respectively. 2. Easements. 2.I Grant of Monument Sign Easement in Favor of Lot 4. The Grantor, as Owner of the Easement Parcel, hereby grants, establishes, covenants, and agrees that Lot 4, and all present, and future Owners and Permittees of Lot 4, shall be benefited, and the Easement Parcel, and all present and future Owners and Permittees of the Easement Parcel, shall be burdened, by a perpetual easement for signage for Lot 4 and the Owners and Permittees of Lot 4 (the "Monument Sign") and the maintenance, repair and replacement of such Monument Sign in the approximate location on the Easement Parcel as shown on Exhibit C (collectively,the "Monument Sign Easement"). The Owner of Lot 4 and such Owner's Permittees shall have the right to enter upon and cross over the Easement Parcel as reasonably necessary to access the Monument Sign Easement to install and remove sign panels on the Monument Sign, at such Owner's sole cost and expense. The Lot 4 Owner shall be responsible for maintaining the Monument Sign only and shall have no obligation to maintain the Common Area of the Easement Parcel around the Monument Sign, which Common Area maintenance shall be the obligation of the Owner of the Easement Parcel pursuant to Section 4.2 hereof. The Owner and Permittees of the Easement Parcel shall have no rights to use or install panels upon the Monument Sign. Notwithstanding anything to the contrary in the foregoing, the Grantor also hereby acknowledges and agrees that the Owner of Lot 4 may grant licenses for panels on the Monument Sign to the Owners of the Additional Gateway Parcels, and if the Owner of Lot 4 grants such license(s) to one or more Owners of any of the Additional Gateway Parcels, such Owners and their Permittees may utilize the Monument Sign Easement. 2.2 Grant of Lighting Easement in Favor of Lot 4. The Grantor, as Owner of the Easement Parcel, hereby grants, establishes, covenants, and agrees that Lot 4, and all present and future Owners and Permittees of Lot 4, shall be benefited, and the Easement Parcel, and all present and future Owners and Permittees of the Easement Parcel, shall be burdened, by a perpetual easement under and across those parts of the Common Area on the Easement Parcel far the. installation. mainternanr ' alteration remodel .'pair and replacement of lighting and lighting fixtures,electrical conduits,lines or systems,and other utility facilities necessary for the lighting of the Monument Sign located on the Easement Parcel (collectively, the "Lighting Easement"); provided that the exact location of any utilities shall be subject to the approval of the Owner of the Easement Parcel. 2.3 Restriction on Use of Easement Parcel. The Grantor shall allow no permanent building, structures, trees or other improvements inconsistent with the use and enjoyment of the Monument Sign Easement to be placed on, over or upon or permitted to encroach upon or obstruct any portion of the Monument Sign Easement, and neither the Grantor nor its successors and/or assigns shall use the Easement Parcel (i) for any purpose inconsistent with the terms and provisions of this Agreement or (ii) in any way that adversely affects the Monument Sign Easement granted herein. 2.4 Indemnification. The Owner of Lot 4 shall indemnify and hold the Owner of the Easement Parcel harmless from and against all claims, liabilities and expenses (including reasonable attorneys' fees) relating to accidents, injuries, loss, or damage of or to any person or property arising from the grossly negligent, intentional or willful acts or omissions of the Owner of Lot 4, its Permittees, or others acting on behalf of such Owner in connection with the exercise of the rights pursuant to the Monument Sign Easement granted herein. 3. Maintenance. 3.1 Signs and Lighting. The Owner of Lot 4 covenants to keep and maintain, at its sole cost and expense, the Monument Sign in good order,condition and repair. The Owner of Lot 4 also covenants to keep and maintain, at its sole cost and expense, any lighting, lighting fixtures or related structures or facilities within the Lighting Easement in good order,condition and repair. 3.2 Common Area on Easement Parcels. The Owner of the Easement Parcel covenants at all times during the term hereof to operate and maintain (or cause to be operated and maintained),at its sole cost and expense,all of the Common Area located on the Easement Parcel in good order, condition and repair. Maintenance of such Common Area shall include, without limitation, maintaining, repairing and replacing any and all walkways, sidewalks, curbing, paving, and other similar site improvements on such Easement Parcel; removing all papers,debris, and other refuse from such Easement Parcel; maintaining and replacing landscaping including mowing of grass and weed-eating; and performing any and all such other duties as are necessary to maintain such Common Area in a clean, safe and orderly condition. 4. Insurance. Throughout the term of this Agreement, each Owner shall procure and maintain general and/or comprehensive public liability and property damage insurance against claims for personal injury (including contractual liability arising under the indemnity contained in Section 2.5 above), death, or property damage occurring upon such Owner's Tract, with single limit coverage of not less than an aggregate of Two Million Dollars ($2,000,000.00) including 3 umbrella coverage, if any, and naming each other Owner (provided the Owner obtaining such insurance has been supplied with the name of such other Owner in the event of a change thereof) as additional insureds. 5. Taxes and Assessments. Each Owner shall pay or cause to be paid all taxes, assessments, or charges of any type levied or made by any governmental body or agency with id5lrettAuIts Tt1.f. 6. No Rights in Public; No Implied Easements.Nothing contained herein shall be construed as creating any rights in the general public or as dedicating for public use any portion of the Tracts. No easements, except those expressly set forth in Section 2 shall be implied by this Agreement. 7. Remedies and Enforcement. 7.1 All Legal and Equitable Remedies Available. In the event of a breach or threatened breach by any Owner or its Permittees of any of the terms, covenants, restrictions or conditions hereof, the other Owner(s) shall be entitled forthwith to full and adequate relief by injunction and/or all such other available legal and equitable remedies from the consequences of such breach, including payment of any amounts due and/or specific performance. 7.2 Self-Help. In addition to all other remedies available at law or in equity, or as otherwise stated in this Agreement,upon the failure of a defaulting Owner to cure a breach of this Agreement within thirty (30) days following written notice thereof by another Owner(unless, with respect to any such breach the nature of which cannot reasonably be cured within such 30-day period, the defaulting Owner commences such cure within such 30-day period and thereafter diligently prosecutes such cure to completion), a non- defaulting Owner shall have the right to perform such obligation contained in this Agreement on behalf of such defaulting Owner and be reimbursed by such defaulting Owner upon demand for the reasonable costs thereof, together with interest at the prime rate published from time to time by The Wall Street Journal(its successors or assigns)plus two percent (2%) (not to exceed the maximum rate of interest allowed by law). Notwithstanding the foregoing, in the event of(i) an emergency and/or (ii) blockage or material impairment of the easement rights,a non-defaulting Owner may immediately cure the same and be reimbursed by the defaulting Owner upon demand for the reasonable cost thereof, together with interest at the prime rate plus two percent (2%), as above described. 7.3 Lien Rights. Any claim for reimbursement described above, including interest as aforesaid,shall constitute a lien(the "Assessment Lien") against the Tract of the defaulting Owner in favor of the non-defaulting party until paid, effective upon the recording of a notice of lien with respect thereto in the Recording Office; provided, however, that any such Assessment Lien shall be subject and subordinate to(i)liens for taxes and other public charges which by applicable law are expressly made superior, (ii) all liens, including without limitation mortgage liens, recorded in the Recording Office prior to the date of recordation of said notice of lien, and (iii) all leases entered into, whether or not recorded, prior to the date of recordation of said notice of lien. Subject to the foregoing, all liens recorded subsequent to the recordation of the notice of lien described herein shall be junior and subordinate to the Assessment Lien. Upon the timely curing by the defaulting Owner of any default for which a notice of lien was recorded, the party recording same shall record an appropriate release of such notice of lien and Assessment Lien. 4 7.4 Remedies Cumulative. The remedies specified herein shall be cumulative and in addition to all other remedies permitted at law or in equity. 7.5 No Termination for Breach. Notwithstanding the foregoing to the contrary, no breach hereunder shall entitle any Owner to cancel, rescind, or otherwise terminate this Agreement. No breach hereunder shall defeat or render invalid the lien of any mortgage • • ' •- • 1 1 i4 i , . !SOO . ' 1 , 11 - conditions and restrictions hereof shall be binding upon and effective against any Owner of such Tract covered hereby whose title thereto is acquired by foreclosure, trustee's sale, or otherwise. 7.6 Irreparable Harm. In the event of a violation or threat thereof of any of the provisions of Sections 2 and/or 3 of this Agreement,each Owner agrees that such violation or threat thereof shall cause the non-defaulting Owner and/or its Permittees to suffer irreparable harm and that such non-defaulting Owner and its Permittees shall have no adequate remedy at law. As a result, in the event of a violation or threat thereof of any of the provisions of Sections 2 and/or 3 of this Agreement, the non-defaulting Owner, in addition to all remedies available at law or otherwise under this Agreement, shall be entitled to injunctive or other equitable relief to enjoin a violation or threat thereof of Sections 2 and/or 3 of this Agreement. 8. Term. The Monument Sign Easement, as well as the other terms and conditions contained in this Agreement, shall be effective commencing on the date of recordation of this Agreement in the Recording Office and shall remain in full force and effect thereafter in perpetuity, unless this Agreement is modified,amended,canceled or terminated by the written consent of all then record Owners of the Tracts, in accordance with Section 9.2 hereof. 9. Miscellaneous. 9.1 Attorneys' Fees. In the event an Owner institutes any legal action or proceeding for the enforcement of any right or obligation herein contained, the prevailing party after a final adjudication shall be entitled to recover its costs and reasonable attorneys' fees incurred in the preparation and prosecution of such action or proceeding, through all appeals. In no event shall an Owner be responsible for any incidental, indirect, consequential,special,punitive or exemplary damages, including but not limited to loss of profit, that another Owner or a Permittee may incur pursuant to or in connection with this Agreement, including pursuant to any indemnification obligations hereunder. 9.2 Amendment. The parties agree that the provisions of this Agreement may be modified or amended, in whole or in part, or terminated,only by the written consent of all record Owners of the Easement Parcel and Lot 4, evidenced by a document that has been fully executed and acknowledged by all such record Owners and recorded in the Recording Office. 9.3 Consents. Wherever in this Agreement the consent or approval of an Owner is required,unless otherwise expressly provided herein,such consent or approval shall not be unreasonably withheld or delayed. Any request for consent or approval shall: (i) be in writing;(ii)specify the Section hereof which requires that such notice be given or that such consent or approval be obtained; and (iii) be accompanied by such background data as is reasonably necessary to make an informed decision thereon. The consent of an Owner c under this Agreement shall be deemed given if no response is provided to the request for consent or approval within seven(7) business days of the request. 9.4 No Waiver. No waiver of any default of any obligation by any party bound by this Agreement shall be implied from any omission by any other party so bound to take any action with respect to such default. The waiver of any party of any breach or default • e • I I t • ' ' • • , r•y-• t- - or default. The failure of a party to insist upon strict performance of or strict adherence to the terms of any provision of this Agreement or to exercise any right arising out of this Agreement shall neither impair that provision or right nor constitute a waiver of that provision or right, in whole or in part, in that instance or in any other instance. 9.5 Covenants to Run with Land. It is intended that each of the easements, covenants, conditions, restrictions, rights and obligations set forth herein shall run with the land and create equitable servitudes in favor of the real property benefited thereby, shall bind every person or entity having any fee, leasehold or other interest therein and shall inure to the benefit of the respective parties and their successors, assigns, heirs, and personal representatives. The grantee of any Tract or any portion thereof, by acceptance of a deed conveying title thereto or the execution of a contract for the purchase thereof,whether from an original or subsequent Owner of such Tract,shall accept such deed or contract upon and subject to each and all of the easements,covenants,conditions, restrictions and obligations contained herein. By such acceptance, any such grantee shall for itself and its successors, assigns, heirs, and personal representatives, covenant, consent, and agree to and with all other Owners, to keep,observe,comply with, and perform the obligations and agreements set forth herein with respect to the property so acquired by such grantee. 9.6 Severability. Each provision of this Agreement and the application thereof to any Tract are hereby declared to be independent of and severable from the remainder of this Agreement. If any provision contained herein shall be held to be invalid or to be unenforceable or not to run with the land, such holding shall not affect the validity or enforceability of the remainder of this Agreement. In the event the validity or enforceability of any provision of this Agreement is held to be dependent upon the existence of a specific legal description, the parties agree to promptly cause such legal description to be prepared. Ownership of all Tracts by the same person or entity shall not terminate this Agreement nor in any manner affect or impair the validity or enforceability of this Agreement. 9.7 Time of Essence. Time is of the essence of this Agreement. In the event that the time for the performance of an action required hereunder by or on behalf of any Owner falls on a Saturday, Sunday, or federal legal holiday, such date shall be deemed postponed until the next business day thereafter. 9.8 Notices. Notices or other communication hereunder shall be in writing and shall be sent by certified or registered mail, return receipt requested, or by national overnight courier company. Notice shall be deemed given (a) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery (or two (2) days after deposit if 2-day delivery is specified), with written verification of receipt,or(b) five(5)days after having been sent by registered or certified mail, return receipt requested, postage prepaid. Each party may change from time to time their respective address for to notice hereunder by like notice to all other Owners. The initial notice addresses are set forth in the preamble to this Agreement. 9.9 Governing Law. The laws of the state in which the Easement Parcel is located shall govern the interpretation, validity, performance, and enforcement of this Agreement. I 1.•4 •' .. - A . 1.1 I I • .1 • • • .Em any other Owner(s), each Owner shall from time to time provide the requesting entity a certificate binding upon such Owner stating: (a) to the best of such Owner's knowledge, whether any party bound by this Agreement is in default or violation of this Agreement and if so identifying such default or violation; and (b) that this Agreement is in full force and effect and identifying any amendments to the Agreement as of the date of such certificate. 9.11 Bankruptcy. In the event of any bankruptcy affecting any Owner or occupant of any Tract, this Agreement shall, to the maximum extent permitted by law, be considered an agreement that runs with the land and that is not rejectable, in whole or in part, by the bankrupt person or entity. 9.12 Third Party Restrictions. No Permittee shall be deemed a third party beneficiary of this Agreement and no Permittee's consent shall be required for any modification or abrogation of this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 7 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. City of Jefferso N,' Ie, an Indiana muni i al ,orporatiBy: .'? Name: Mike Moore Title: Mayor STATE OF INDIANA ) ) SS COUNTY OF CLARK ) The foregoing Agreement was subscribed, sworn to and acknowledged before me on January 30th,2019,by Mike Moore as Mayor fo . - ity of Jeffersonville, an Indiana municipal corporation,on behalf of same. 11111.411k, I' Notary Public My Commission Expires: 2/912022 County of Residence: Clark 8 HOGAN HOLDINGS 59, LLC, an Indiana limited liability company By: 1 same: I lor ana5er COMMONWEALTH OF KENTUCKY ) ) SS COUNTY OF JEFFERSON ) The foregoing Agreement was subscribed, sworn to and acknowledged before me on Ft.1 ft ar 20 t9 . by W. [rltvwt4. y% as Akarastke of Hogan Holdings 59, LLC, an Indiana limited liability company,on behalf of same. Notary Public 4441 file'rt" My Commission Expires: '1411-17.1 County of Residence: ftfctxJui WESLEY MAZE Notary Public-State at Large KENTUCKY My Commission Expires 07-17-2021 This Instrument Prepared By: Edith Sommer General Counsel Hogan Real Estate 9300 Shelbyville Road Smite 13411 Louisville, Kentucky 40222 502) 426-1050 I affirm under penalties of perjury that I have taken reasonable care to redact each social security number in this document unless required by law: Edith Sommer EXHIBIT A Legal Description of Easement Parcel EASEMENT PARCEL: 1 David R. Blankenbeker,P.L.S. Howard R.Blankenbeker(1908-1974) Rollyn H.Blankenbeker (1934-1994) Blankenbeker & Son Land Surveyors Inc., P.C. Established 1945 618 E.Court Avenue (812)282-4183 phone P.O.Box 157 Jeffersonville,Indiana 47130 (812)282-4197 fax Jeffersonville,Indiana 47131-0157 5 February 2019 DESCRIPTION OF PROPOSED SIGN EASEMENT Being a part of Ohio Avenue,Ninth Street,part of Lot 8 in Block 92,and part of Lot 9 in Block 91,all in the City of Jeffersonville, Clark County, Indiana and being further described as follows: Beginning at a steel pin on the southeast corner of Lot 1 in said Block 92; Thence N.85°32'19"W., along the north Right-of-Way line of vacated Eighth Street(see Instrument 201518373), 117.56 feet to the southwest corner of said Lot 1; Thence N.4°03'43"E., along the east Right-of-Way line of Ohio Avenue, (passing through a railroad spike on the northwest corner of Lot 6 in said Block 92 at 282.04 feet)353.21 feet to THE TRUE PLACE OF BEGINNING: Thence N.85°16'30"W., 67.51 feet; Thence N.73°56'05"E., 83.05 feet to the prolongation of the southwest Right-of-Way line of Spring Street if extended northwesterly; Thence S.31°32'17"E., along said extended Right-of-Way line and said Right-of-Way line(passing through a drill hole in concrete on the northeast corner of Lot 8 in said Block 92 at 8.23 feet) 36.56 feet; Thence N.85°16'30"W., 31.76 feet to THE TRUE PLACE OF BEGINNING. Containing 1463 square feet and being subject to all legal highways and easements of record. T:\DOCS\DESCRIPTIONS\23086.doc 10 -I4) --w -jd -01-7 .- c1:0 -010 EXHIBIT B Legal Description of Lot 4 LOT 4 Being all of Lot 4 as shown on the Jeffersonville Gateway Final Plat-- Phase 1, recorded on October 30, 2018, in Plat Book 17, Page 61.as Instrument No. 20I 819450 in the Office of the Recorder of Clark County, Indiana. Being the same property conveyed to Hogan Holdings 59, LLC,by Deed dated February_,2019. recorded as Instrument No. in the Office of the Recorder of Clark County. Indiana. EXHIBIT C Monument Sign Easement 5.(YA waled] , i• 1 1 , 1 . I 1 i a , ......_ i ) -4... a ........... Q.) a MINIMMINIMMNIUMINIM. 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